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What Should Congressional Democrats Do, When the Bush Administration Stonewalls Their Efforts To Undertake Oversight?:
Part Two in a Three-Part Series


Friday, Dec. 29, 2006

"We see a war coming on Capitol Hill," a well-connected Republican attorney based in Washington recently told me, as I reported in my last column on the subject. The clash is not surprising, because Vice President Dick Cheney -- who is at the center of many of the subjects the Democratic Congress will be investigating -- is strongly opposed to Congress's inquiring into these areas. He believes the power of the presidency is at stake. Accordingly, as I noted earlier, he has made it quite clear that he is not going to cooperate with these investigations.

Before the conflict develops, it might seem helpful to go over the rules of the game -- to appreciate who is on solid ground, who is on shaky ground, and why this is the case. But as it happens, there are no rules!

That is, there is simply no well-established law of the land regarding what Congress can require a president, or a vice president, to provide them. Similarly, there is no well-settled law regarding what the president can, and cannot, withhold from Congress by citing "executive privilege" or other rationales. Thus, while this ground has been traveled many times, it still remains essentially uncharted.

Of course, there are precedents, and even U.S. Supreme Court rulings, in this area. But they have virtually no applicability when the contest involves Congress and the White House. Also, while forests have doubtless been consumed to publish copious learned treatises, essays, articles, and reports on this subject, at bottom, this is a matter not of law, but purely of politics. There is, however, evidence regarding this matter that can be drawn from history.

Allow me to elaborate - in this column, and the next - on the legal and political situation.

The Elusive Rules Regarding Congress's Access to Executive Branch Information

The Constitution is silent regarding Congress's power to investigate the president, and his constitutional partner, the vice president. It is equally silent about the power of a president and vice president to withhold information from Congress, when it is requested.

Thus, the implied powers of Congress and the President, respectively, are exclusively at issue; express constitutional language offers no guide.

Moreover, federal courts often cede jurisdiction in disputes between these constitutionally co-equal entities, for they involve "political questions." In the end, such disputes are most frequently resolved by political accommodation by either the Congress, or the President.

"Congressional oversight is one of the most important responsibilities of the United States Congress," the Committee on Rules of the U.S. House of Representatives states, adding that this responsibility extends to "the review, monitoring, and supervision of federal agencies, programs and policy implementation, and it provides the legislative branch with an opportunity to inspect, examine, review and check the executive branch and its agencies." For all practical purposes, then, there is nothing that transpires within the Executive Branch that is beyond Congressional oversight.

Historical Practice: Congress Seeks and Gets Wide-Ranging Information on the Executive

Indeed, since the beginnings of our government, Congress has sought, and been given, information relating to every facet of executive actions.

The fact that a president's actions are undertaken pursuant to his Constitutional authority, such as that granted by the Commander-in-Chief clause or the "Take Care" clause, does not preclude Congress from examining that activity. There is almost no area of presidential activity into which Congress has not previously made inquiry. Thus, Bush and Cheney are going to be hard-pressed to justify any refusal to cooperate with the Democratic Congress.

When Congress seeks information from the Executive Branch, it typically starts with an informal request at the staff level, made of an official in one of the departments or agencies. If the request is refused, the relevant congressional staffer goes to a member of his or her committee, and requests that the member seek the information. If the member is also turned down, the request is taken to the full committee, or its chair, and a decision is made whether to issue a subpoena.

Often, before the Chairman or the full committee issues a subpoena, further informal negotiations occur. There is a long-existing tradition, recognized by all three branches, that Congress and the President are expected to work through a series of negotiations and accommodations to avoid a constitutional clash. Sometimes this process works, and the Congress narrows its requests, agrees to keep the information confidential, or obtains the information informally. When it does not work, the president must claim privilege.

The Bush Administration has been reluctant to claim "executive privilege" - given the bad name Nixon gave the use of the privilege. Accordingly, the Administration has on several occasions claimed a "deliberative privilege" - even though no such privilege exists, and it is merely another name for executive privilege.

Often, Congress folds when the president invokes executive privilege, for there is no real judicial remedy (as noted above, courts tend to punt, citing the "political question" doctrine). However, a determined Congress - or committee thereof - can prevail over a recalcitrant president (or vice president) if its members are determined and persistent.

Thus, if the 110th Congress, controlled by the Democrats, fails to get the information it needs -- and the public wants -- about the workings of the Bush/Cheney presidency, it will not be because it does not have the tools with which to obtain that information. Rather, it will be because it lacks the will to use those tools.

Forcing Executive Compliance with Congressional Information Requests

When Congress plays hardball, it gets the information it wants from the president. The Congressional Reference Service (CRS) has prepared a complete manual on oversight, which they updated recently. In the manual, CRS has laid out all Congress needs to know to crack any stonewall Bush and Cheney may erect to block their oversight efforts.

Lou Fisher, one of the authors of the CRS manual, catalogued a number of the methods available to Congress in his essay: "Congressional Access To Information: Using Legislative Will And Leverage." Drawing on historical examples, Fisher shows that Congress has a host of tools, of various size and shape and depending on the situation, to "extract information from the President."

Together, the manual, the update, and Fisher's excellent article provide an adept guide to everything Congress needs to exercise meaningful oversight as to the Bush Administration - everything, that is except the intestinal fortitude required for winning this staring contest, without blinking.

In my next column, I will take a specific look at some of the weapons in this awesome arsenal.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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